hot topics in marketing compliance and enforcement peter marinello
DESCRIPTION
Hear from regulators and industry insiders on critical legal issues facing affiliate marketers today, including advertising practices, affiliate liability, and enforcement priorities.Jeffrey Greenbaum, Partner, Frankfurt Kurnit Klein & Selz PC (Twitter @jeffgreenbaum) (Moderator)Leonard Gordon, Director, Northeast Region, Federal Trade CommissionDavid Graff, General Counsel and Sr. Vice-President, Corporate Development, Epic AdvertisingPeter Marinello, Director, Electronic Retailing Self Regulation Program, Council of Better Business BureausTRANSCRIPT
The Electronic Retailing Self-Regulation Program
(“ERSP”)
Peter Marinello, ERSP Director
ERSP Policy and Procedures
Direct Response Advertising
60 Calendar DaysPrimary and Core
Claims Anonymous
ChallengesDetermination as to
whether substantiation appears reasonable on its face
Self-Regulatory Goals
1. Improve/restore consumer confidence in electronic retailing.
2. Provide a quick and efficient mechanism for reviewing “high profile” advertising campaigns
3. Effectuating the discontinuance of DRTV and other advertising and marketing materials that contain egregious, unsupported efficacy and/or performance claims.
4. Demonstrate to the FTC, the direct response industry’s commitment to strong self-regulation and compliance with legal requirements.
““Lose 287% the weight compared to placebo”
“The World’s Fastest Weight-Loss
Solution”
“Within 7 days my acne
completely disappeared”
‘The Clinically Proven Weight Loss
Supplement!”
The #1 Doctor Recommended Joint Supplement”
Over the past few years, ERSP has examined many types of claim substantiation:
- Testimonials/Endorsements- Before and After Depictions- Weight Loss- Health and Safety- Establishment Claims- Disclosures- New Media- Puffery- Demonstrations
Objective claims for products or services represent explicitly or by implication that the advertiser has a reasonable basis supporting these claims.
The Commission's determination of what constitutes a reasonable basis depends, as it does in an unfairness analysis, on a number of factors relevant to the benefits and costs of substantiating a particular claim. These factors include: the type of claim, the product, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation for the claim, and the amount of substantiation experts in the field believe is reasonable.
RAPID SHAVE
URINE GONE
ANDERSEN DOORS
VELFORM SAUNA BELT
Clinically Proven Ingredients
CLINICALLY PROVEN CLAIMS
Reliable and Competent Evidence
“…test, analysis, research, studies or other evidence based upon the expertise of professionals in the relevant area that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.”
CLINICAL TESTING DATA
Independently conducted (double-blind; placebo controlled)
Adequate sample size
Conducted over a reasonable period of time
Statistically Significant results
Claims = Data
“ The FTC would like to acknowledge that the products at issue in this case were the subject of a referral to the agency from the Electronic Retailing Self-Regulatory Program. ”
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